The court rejected the theory of strict
liability for search engine results. Instead the search engine must have actual
knowledge of the defamatory or infringing content based on notice from a
judicial official, except in cases involving clearly illegal content such as
child pornography.

Background

In 2006, Argentinian model María Belén
Rodriguez sued Google claiming that searches of her name returned links to and
thumbnail photographs from pornographic websites. She alleged the search results
falsely portrayed her as a prostitute and the thumbnails used her image without
permission. A lower court ordered Google to pay damages of approximately $6,000
U.S. on the basis that Google was responsible for the harm caused by the third
party sites which were not parties to the case.

Although the damages were modest,
hundreds of similar lawsuits are pending in Argentina against Google and other
search engines seeking to hold them liable for search results and content on
third party websites.

I wrote a “friend
of the court” amicus brief to the Supreme Court addressing the issue of
intermediary liability of search engines and referring the Court to
international standards in this area.

Court Ruling

The Court held that a strict liability
regime for search engines would be contrary to freedom of expression. And
search engines have no legal obligation to monitor the content they transmit.
The Court extended this analysis to the thumbnails (the miniature images in
online searches). Those would also be the responsibility of whoever produced
the images and the content, and not the responsibility of the intermediary that
simply indexes them.

The search
engine is only responsible when it has “actual knowledge” of unlawful content.
But such knowledge should be based on notice from a competent authority (a
judge or tribunal, for example), and not merely upon a user’s complaint to the
search engine. The Court noted that search engines do not have to act as judges
to determine whether content is defamatory.

However the
search engine may be held responsible in cases in which the content is “explicitly
unlawful,” a standard which, in the Court’s judgment, would be useful for clear
cases like child pornography, and a list of other examples, including hate
speech.

More clarification will be needed to
determine whether and how notice applies in these situations, however, this
does not detract from the Supreme Court’s approach in resolving the core issue,
particularly the Court’s respect for freedom of expression.

In addition, the Court noted that
preliminary measures to remove content should be limited to exceptional cases,
given that restrictions and limitations on freedom of expression carry a strong
presumption of unconstitutionality.

The case was resolved by a majority, not
unanimously. Judges Ricardo Lorenzetti and Juan Carlos Maqueda dissented in
part and their opinions will need to be analyzed in greater depth. In their
dissent, for example, they would have held Google responsible for the
thumbnails based on violation of rights to image. They also contemplated the
possibility of preventive court measures to remove or block links that are
clearly detrimental to personal rights.

In conclusion, while some of the issues
covered in this ruling will need clarification in the future – like the
standard on actual knowledge – in general the decision is, without a doubt, a
valuable precedent for freedom of expression on the Internet.